The government’s rights of compulsory acquisition can be invoked to acquire land needed directly, or indirectly, for government projects.
But the government cannot act as proxy to acquire compulsorily land for utility operators needing to relocate infrastructure as a consequence of a government project.
Utility operators needing to acquire land for their works should instead rely on the Minister’s parallel acquisition powers under the Resource Management Act.
So the Supreme Court has found in Seaton v Minister for Land Information, reversing a previous finding by the Court of Appeal.
Three Orion electricity towers needing to be removed as part of an NZTA project to widen State Highway 1 near Christchurch had to be relocated elsewhere.
The Minister for Land Information (Minister) issued a notice of intention under s23 of the Public Works Act 1981 (PWA) to take compulsorily easements to relocate them on land belonging to Mrs Seaton. The easements were to be passed to Orion, after vesting in the Crown.
Mrs Seaton successfully challenged the lawfulness of the Minister’s action in the High Court. On appeal, the Court of Appeal overturned that decision, finding that it was open to the Minister to conclude that the land was reasonably necessary for the road widening, and accordingly was “required” in terms of the PWA.
In allowing Mrs Seaton’s appeal, the Supreme Court reinstated the High Court’s orders declaring that the Minister’s use of the PWA to take the easements was invalid.
The Supreme Court
The key issues for the Supreme Court were whether the easements were needed for the road widening project and whether the Minister’s compulsory acquisition powers under s16(1) of the PWA could be invoked for land required indirectly for a public work.
The majority of the Supreme Court found that:
- the easements over Mrs Seaton’s land were for conveying electricity, which was under Orion’s control, rather than for the road widening, and
- land indirectly needed may be acquired under s16 so long as it is required for the government work; for example, land needed to take fill which has been excavated for the purposes of road construction.
Orion could have applied to the Minister under section 186 of the Resource Management Act 1991 (RMA) to have the easements acquired.
The Court rejected the argument that the process under s186 of the RMA would be cumbersome or would not allow for the Minister’s control of the whole acquisition process.
The taking process is controlled by the Minister whether he uses the power under s16 of the PWA, or s186 of the RMA. The difference is that land acquired under s186 vests in the network utility operator, while land acquired under s16 of the PWA vests in the Minister.
Co-operation is important
The requiring authority for the main project and affected network utility operators will need to work closely together. Any consequential need to relocate infrastructure can then occur in parallel with the main project. For roading projects, co-operation would help to ensure utility operators obtain a new location for infrastructure before their existing infrastructure needs removing. If necessary, utility operators can apply to have the Minister use the compulsory acquisition process under s186 of the RMA.